The Customer acknowledges that the Superfiliate Platform and its Services (including: trade secrets, slogans, logos, trade-identifying symbols) are owned by Superfiliate Inc. and are protected under copyright, trademark, and other applicable United States and international laws and treaties. Without limiting the foregoing, the trademarks, service marks, and logos displayed on the Platform are registered and unregistered marks of Superfiliate Inc. and its third-party licensors. You acknowledge and agree that, as between you and Superfiliate Inc., Superfiliate Inc. is and shall remain the sole owner of the Services and the Content, including, without limitation, all patents, copyrights, trademarks, trade secrets, and other intellectual property and proprietary rights therein and thereto.
2.1 Non-Assertion of Intellectual Property Infringement Claims
Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Superfiliate or any Authorized Reseller, any patent infringement or other intellectual property infringement claim with respect to the Superfiliate Platform, its services, or any documentation or Superfiliate materials related thereto.
3. Account Registration, Security and Restrictions
Access to and use of certain Services and the Superfiliate Platform may require you to register for an account. You agree to provide true, accurate, current, and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your account, regardless of who conducts those activities. You may not share your account with anyone or allow anyone else to access or use your account. You are responsible for maintaining the confidentiality of your account information, including your username and password. You agree to immediately notify Superfiliate Inc. of any unauthorized use of your account, or any other breach of security. We are not liable for any loss or damage arising from your failure to protect your username or password.
4. License to Market Customer’s Content and Services
Pursuant to Customer’s use of the Superfiliate Platform and its Services, Customer grants Superfiliate, and any third-party partner website(s) a transferable, non-exclusive, royalty-free license during and after the Customer’s subscription term to use Customer’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and all other marketing or promotional content (“Partner Marketing Material”) provided by Customer to Superfiliate in connection with the advertising, promotion, and sale of Customer’s products, services, or business. Customer grants Superfiliates a transferable, non-exclusive, royalty-free right and license to use these Partner Marketing Materials on its website, in slide decks, case studies, and other marketing materials.
5. Telephone Consumer Protection Act (“TCPA”)
Customer is solely responsible and liable for ensuring that its use of the Superfiliate Platform or its Services comply with the TCPA, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, including, without limitation, ensuring that all phone numbers and other personal information used in connection with the Superfiliate Platform or its Services have been collected in accordance with the TCPA, ensuring that sufficient notice and consent has been received and maintained by Customer in connection with its use of the Superfiliate Platform or its Services under the Agreement, and for the preparation and distribution of all messages, content, and other materials delivered to the Customer’s End Users and other recipients by and through the Superfiliate Platform or its Services.
5.1 Messaging Obligations
Customer agrees and acknowledges that you will (1) comply with all applicable federal, state, and local laws, regulations, and rules governing such Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, and state and local equivalents; (2) comply with all applicable industry best practices; (3) send Messages only to individuals from whom your Organization has obtained the legally required consent to do so; and (4) promptly notify Superfiliate Inc. of all requests made by Subscribers to stop receiving Messages from Superfiliate Inc. or your Organization. As used in this Section, “Organization” means any company, entity or organization on whose behalf you access and use the Platform to send Messages to its End Users.
6. Prohibited Content
Customer acknowledges and agrees to not hold Superfiliate liable for any prohibited content that it or its End Users send over the Superfiliate Platform or via Superfiliate’s Services, including, but not limited to, content that may be fraudulent, harmful, misleading, racist, intolerant, or otherwise objectionable. In addition to, and without limitation to, the terms listed above, Customer acknowledges that Superfiliate prohibits any use of the Superfiliate Platform or its Services in connection with any of the following types of content:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).
- Age Restriction. In order to use the Superfiliate Platform and/or its Services, Customer must be eighteen (18) years of age or older. Customer acknowledges and agrees that Customer is not under the age of eighteen (18) years and is of adult age in Customer’s jurisdiction and is permitted by that jurisdiction’s Applicable Law to use the Superfiliate Platform and its Services. Customer also agrees that it will not knowingly permit an End User under the age of eighteen (18) years to use the Superfiliate Platform without parental consent.
- Any product, service, or promotion that is unlawful including such product, service, or promotion thereof is received by the End User.
Customer shall, at its own cost and expense, procure and maintain in full force and effect during the Term of this Agreement, policies of insurance, of the types and in the minimum amounts reasonably necessary and appropriate in its industry to perform its obligations under this Agreement, with a responsible insurance carrier duly qualified in those states (locations) where the Superfiliate Platform and its Services are to be performed or used. Unless Superfiliate otherwise agrees in writing, a complying policy will include a coverage rider expressly providing for coverage of TCPA claims and will include a “most favored jurisdiction” provision. Upon Superfiliate’s request, Customer will provide its certificate of insurance.
8. Rights You Grant to Us
You hereby grant to Superfiliate Inc. an irrevocable, perpetual, non-exclusive, transferable, sublicensable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on or send through the Services for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to so-called “rental rights,” “moral rights,” and all rights of “droit moral” in that User Content, even if the User Content is altered or changed in a manner not agreeable to you. If you post User Content, you represent and warrant to Superfiliate Inc. that you own or control all rights in and to such User Content and have the right to grant the rights above to us. User Content is defined as any content posted or transmitted by the End User through the Superfiliate Platform, Services and thirty party partners. Customer agrees that you are solely responsible for your User Content, and you acknowledge and agree that Superfiliate Inc. is not responsible for, and does not endorse, any User Content.
9. Electronic Communications
The communications between you and Superfiliate Inc. via the Services use electronic means. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
11. Suspension/Termination of Access
12. Alterations to the Platform and Services
Superfiliate Inc. reserves the right to make changes to, suspend, or discontinue (temporarily or permanently) the Services or any portion thereof at any time to either the End User or Customer. You agree that Superfiliate Inc. will not be liable to you or to any third party for any such change, suspension, or discontinuance.
13. Disclaimer of Warranties
The Superfiliate Platform and Service are offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Superfiliate’s control.
13.1 Further Disclaimers
THE SERVICES AND THE CONTENT ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND SUPERFILIATE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER SUPERFILIATE NOR ANY PERSON ASSOCIATED WITH SUPERFILIATE MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES OR ANY CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER SUPERFILIATE NOR ANYONE ASSOCIATED WITH SUPERFILIATE REPRESENTS OR WARRANTS THAT THE SERVICES OR THE CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES, CONTENT, OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR THE CONTENT WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
14. Limitation of Liability
ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SERVICES OR THE APPLICATION IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY IRREVOCABLY RELEASE SUPERFILIATE FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
17. Copyright Infringement
Customer represents and warrants that Customer Data does not and will not infringe on any copyright, patent, trade secret, or other proprietary right held by any third party and was not and will not be gathered or used by Customer in a manner that violates Applicable Law; including, but not limited to, the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, or similar state and federal laws. It is Superfiliate Inc.’s policy to disable and/or terminate the accounts of users who violate this clause. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any content accessible on the Platform infringes your copyright, you may request removal of such content (or access thereto) by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), your written notice of alleged copyright infringement must include substantially the following:
- your physical or electronic signature;
- identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Platform, a representative list of such works;
- identification of the content you believe to be infringing in a sufficiently precise manner to allow us to locate that content;
- adequate information by which we can contact you (including your name, postal address, telephone number and, if available, email address);
- a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
- a statement that the information in your written notice is accurate; and
- a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
809 Brooks Ave
Venice, CA 90291
*NOTE: This contact information is for inquiries regarding potential copyright infringement only.
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA notice may not be effective. Please be aware that if you knowingly materially misrepresent that content on the Platform is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
18. Third Party Platforms
Superfiliate Inc. may provide the Services to you through third-party partners, platforms, and portals (defined as, “Third Party Platforms”). Additional terms and conditions may apply to you with respect to your use of Third Party Platforms, which are not under Superfiliate Inc.’s control. Superfiliate Inc. does not assume any responsibility or liability for your use of such Third Party Platforms.
19. ARBITRATION AGREEMENT
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS THE WAY THAT YOU AND WE BRING CLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED.
19.1 DISPUTE RESOLUTION
You may assert claims in your local small claims court if its rules permit it;
Any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights) must be brought in court; and in the event this agreement to arbitrate is for any reason held to be unenforceable, any dispute or claim against us (except for small-claims court actions) may be commenced only in a federal or state court located in Los Angeles County, California, and we both consent to the jurisdiction of and venue in those courts for such purposes. We both also consent to the jurisdiction of and venue in those courts for purposes of any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (excluding its privacy or publicity rights). You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. This agreement to arbitrate is governed by the Federal Arbitration Act, including its procedural provisions, in all respects.
20. Prohibition of Class Actions and Non-Individualized Relief
ANY ARBITRATION WILL BE CONDUCTED BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). If this specific provision is found to be unenforceable, then all of Section 19 and 20, will be null and void and neither of us will be entitled to arbitrate our dispute.
20.1. Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) and will be governed by AAA’s Consumer Arbitration Rules (“AAA Rules”), as modified by this Agreement. The AAA Rules may be accessed at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, and must enforce the same limitations stated in this Agreement as a court would. The arbitrator will issue an award decision in writing but will not provide an explanation for the award unless you or Superfiliate Inc. requests one. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
20.2. Demand for Arbitration
A party who intends to arbitrate (“Claimant”) must first send to the other party (“Respondent”) a written notice, entitled “Demand for Arbitration” (“Demand”). The Demand must: (1) briefly explain the dispute; (2) provide the Claimant’s name and address, the address of the Claimant’s representative (if the Claimant has one), and the Respondent’s name and address (for Superfiliate Inc., see below); (3) specify the amount of money in dispute, if applicable; (4) if the Claimant is requesting an in-person hearing, identify the requested location for the hearing; and (5) include a statement of what the Claimant wants. The Claimant must send one copy of the Demand to AAA at the same time the Claimant sends it to the Respondent. When sending a copy of the Demand to AAA, the Claimant must also include a copy of this arbitration agreement and any amendments to it (see Section 19.7) and the then current filing fee required by the AAA. The Demand must be sent to the AAA at the following address:
American Arbitration Association
Case Filing Services
1101 Laurel Oak Road, Suite 100
Voorhees, NJ 08043
Alternatively, the Demand may be filed with the AAA online using : AAA WebFile: https://www.adr.org. Any Demand to Superfiliate Inc. should be addressed to:
809 Brooks Ave,
Venice, CA 90291
20.3. Filing, Administration and Arbitrator Fees
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated above.
Opt-Out Procedure. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISIONS IN SECTIONS 19 AND 20 , YOU MUST NOTIFY SUPERFILIATE IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT FOR THE FIRST TIME. YOU MAY OPT OUT BY MAILING A WRITTEN NOTICE TO SUPERFILIATE AT THE ADDRESS SET FORTH IN SUBSECTION 19.4. YOUR WRITTEN NOTIFICATION TO SUPERFILIATE MUST INCLUDE YOUR NAME, MAILING ADDRESS, E-MAIL ADDRESS, PHONE NUMBER AND SUPERFILIATE ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH SUPERFILIATE THROUGH ARBITRATION. IF YOU OPT OUT OF THE ARBITRATION PROVISIONS IN SECTIONS 19 and 20 , ALL OTHER PROVISIONS OF THIS AGREEMENT WILL CONTINUE TO APPLY.
20.4. JURY TRIAL AND CLASS ACTION WAIVER
IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND SUPERFILIATE EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN A COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.
21.1. Geographic Restrictions
Superfiliate Inc. is based in the State of California in the United States. We make no claims that the Services or the Content are accessible or appropriate outside of the United States. Access to and use of the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
21.2. Governing Law; Jurisdiction and Venue
21.3. Limitation on Time to File Claims
22.1 Waiver and Severability
22.2 Entire Agreement
809 Brooks Ave
Venice, CA 90291
Notice to California Residents. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.